To redress these alleged constitutional wrongs, Mr. Page suggests that the Court rewrite Senate Rule XXII by substituting "And if that question shall be decided in the affirmative by a simple majority of a quorum Senators [sic] plus the vote of the Vice President, if the votes be equally divided. . ." for the current phrase "And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn. . . ." Id. at p. 6 P 2. Mr. Page also requests that the Court order the Senate to henceforth close debate by a simple majority of a quorum, id. at p. 7 P 3, and that defendants Rubin and Withrow "suspend the pay of those Senators participating in violation of the Court's Orders," id. at p. 7 P 4.
The Senate defendants' advance four reasons why this Court should grant their motion to dismiss: (1) Mr. Page lacks standing to raise this issue; (2) the Speech or Debate Clause bars suits such as this one; (3) the issue Mr. Page raises is nonjusticiable; and (4) the complaint fails to state a claim upon which relief can be granted. In their motion, defendants Rubin and Withrow likewise argue that Mr. Page lacks standing and that this complaint fails to state a claim upon which relief can be granted.
A. Standard of Review
In considering a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Kenneda v. United States, 279 U.S. App. D.C. 366, 880 F.2d 1439, 1442 (D.C. Cir. 1989). The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Shear v. National Rifle Ass'n, 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979); see also 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE, § 1357, p. 304 (1990). The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).
By challenging the Senate's cloture rule in this action, Mr. Page is attempting to involve the federal courts in the on-going public debate over the efficacy and merits of the Senate's debate practices, particularly its use of filibuster to delay or prevent a Senate vote on controversial political issues.
However, federal courts are not empowered to resolve every current public debate; under Article III of the Constitution, the federal courts have jurisdiction over a dispute only if it is a "case" or "controversy." U.S. CONST. art. III, § 2, cl. 1; see Raines v. Byrd, U.S. , 138 L. Ed. 2d 849, 117 S. Ct. 2312, 2317 (1997). In fact, "no principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines, 117 S. Ct. at 2317 (internal citations omitted). Under the rubric of Article III jurisprudence, the federal courts have developed a cluster of doctrines such as standing, mootness, ripeness, political question, and the like by which to give meaning to Article III's case-or-controversy requirement. Animal Legal Defense Fund, Inc. v. Glickman, 327 U.S. App. D.C. 235, 130 F.3d 464, 467 (D.C. Cir. 1997) (citations omitted); National Treasury Employees Union v. United States, 322 U.S. App. D.C. 135, 101 F.3d 1423, 1427 (D.C. Cir. 1996). These doctrines serve to limit the federal courts' docket to those disputes traditionally thought to be capable of resolution through the judicial process and to restrict the federal courts to a role consistent with a system of separated powers. Animal Legal Defense Fund, Inc., 130 F.3d at 467. The doctrine of standing governs the outcome in this case.
Standing is "built on a single basic idea -- the idea of separation of powers." Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). Standing promotes separation of powers by preventing lawsuits by litigants with only an academic interest in the outcome of the case and ensuring that a specific controversy is before the court and that that controversy is being litigated by an interested advocate. See, e.g., United States v. Richardson, 418 U.S. 166, 192, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974) (Powell, J., concurring); Baker v. Carr, 369 U.S. 186, 204-08, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). Specifically, the standing doctrine requires would-be federal litigants to demonstrate (1) an injury in fact; (2) which is caused by, or is fairly traceable to, the alleged unlawful conduct; and (3) which is likely to be redressed by a favorable decision of the court. Animal Legal Defense Fund, Inc., 130 F.3d at 467; see also Raines, 117 S. Ct. at 2317; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Skaggs v. Carle, 324 U.S. App. D.C. 87, 110 F.3d 831 (D.C. Cir. 1997). The standing inquiry must be "especially rigorous when reaching the merits of the dispute would force [the court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines, 117 S. Ct. at 2317-18.
The first requirement -- injury in fact -- requires "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent,' not 'conjectural' or 'hypothetical.'" Lujan, 504 U.S. at 560 (citations omitted). Therefore, to satisfy this requirement, Mr. Page must show "that he has sustained or is immediately in danger of sustaining some direct injury as a result of [Senate Rule XXII's] enforcement, and not merely that he suffers in some indefinite way in common with people generally." Frothingham v. Mellon, 262 U.S. 447, 488-89, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). If he asserts only the "generalized interest of all citizens in constitutional governance," he has alleged only an abstract injury insufficient to confer standing. See Raines, 117 S. Ct. at 2324 (Souter, J., concurring in judgment); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974). Vindication of the public interest in governmental observance of the Constitution and the law is the function of Congress and the President, not the judiciary. Lujan, 504 U.S. at 576; see also Crockett v. Reagan, 558 F. Supp. 893, 898 (D.D.C. 1982) (JHG) (concluding that fact-finding necessary to determine violation of War Powers Resolution was properly function of Congress not judiciary), aff'd 232 U.S. App. D.C. 128, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied 467 U.S. 1251, 82 L. Ed. 2d 839, 104 S. Ct. 3533 (1984).
Mr. Page alleges that Senate Rule XXII injuries him in two ways. First, he claims that the rule unconstitutionally dilutes his voting power because his two Senators are deprived "of equal suffrage in the Senate when 41 Senators from other states choose to prevent a vote by a simple majority of a quorum." Compl. P8. Second, he argues that Senate Rule XXII deprives him of his "constitutional right to be governed by some simple majority of a quorum," Compl. P5, because "no matter how Page votes, a mix of 41 Republican and Democratic Senators from the least populous States, can and do obstruct federal lawmaking by a simple majority of a quorum," Compl. P 8.
There are fatal flaws in Mr. Page's arguments. Most importantly, he cannot show that he has suffered or will suffer actual injury. It is well-settled that a plaintiff must "show that he personally has suffered some actual or threatened injury." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (internal citations omitted). A plaintiff must specifically allege "that the challenged practices harm him " and that he has experienced a "demonstrable, particularized injury." Warth v. Seldin, 422 U.S. 490, 508, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In this case, Mr. Page has not demonstrated that he has sustained or will imminently sustain direct harm as a result of Senate Rule XXII. This Court cannot find that a litigant has standing based solely on his speculation that, no matter which party's senatorial candidates he votes for, Senators of the other political party will invoke Rule XXII to prevent the passage of unspecified legislation favored by Mr. Page. Mr. Page asserts that Rule XXII "drastically diminishes [his] voting power to obtain legislation he desires."
Yet he does not provide examples of the types of legislation he favors and does not indicate how he personally has been or will be injured if that legislation fails to become law.
Of particular importance, to constitute injury in fact, the harm alleged must be actual and imminent, not conjectural and speculative. Assuming arguendo that the filibuster remains a viable tool of a minority of Senators bent on blocking all future legislation favored by Mr. Page, he cannot show that he will suffer any personal harm should this hypothetical legislation not come to a vote. His complaint contains unspecified allegations regarding "legislation he desires" -- precisely the kind of vague, conjectural and hypothetical harm which cannot confer standing. By the very nature of his claim, Mr. Page does not and cannot name particular bills that will be the subject of future allegedly unconstitutional filibusters.
In addition, Mr. Page's allegations of injury are sharply undercut by the Supreme Court's recent decision in Raines v. Byrd, U.S. , 138 L. Ed. 2d 849, 117 S. Ct. 2312 (1997). In that case, six Members of Congress challenged the constitutionality of the Line Item Veto Act. 117 S. Ct. at 2316. On expedited appeal from the District Court, the Court held that plaintiff Congressmen lacked standing to challenge the Act because their alleged injury was not personal, but was common to all members of Congress, 117 S. Ct. at 2318; because the injury amounted to a loss of political power rather than the loss of a private right, id. ; and because such an abstract dilution of institutional legislative power was an insufficient injury, 117 S. Ct. at 2320-21. Based on the Court's Raines reasoning, it might well be that Mr. Page's Senators would themselves lack standing to challenge the cloture rule in federal court because any injury arguably resulting from that rule is common to all Senators, amounts to a loss of political power, and is essentially an abstract dilution of institutional legislative power. Any injury to Mr. Page is even more attenuated than the injury to his Senators and, therefore, certainly insufficient to support standing.
Finally, Mr. Page's claims of injury are insufficient because the votes of 51 Senators are still all that is necessary to enact any particular legislation. As illustration, in Skaggs v. Carle, 324 U.S. App. D.C. 87, 110 F.3d 831, 833 (D.C. Cir. 1997), several Representatives, their constituents, and the League of Women Voters challenged a House Rule that required a three-fifths majority to pass a federal income tax rate increase. The Court focused on the fact that the House had routinely voted to waive the three-fifths requirement and thus had approved income tax rate increases by a simple majority. 110 F.3d at 835. Because the Court found that the votes of 218 Members remained sufficient in practice to pass income tax rate increase legislation, it found that the injury alleged was only conjectural or hypothetical and thus insufficient to support standing. 110 F.3d at 836. The Skaggs opinion implies that a House or Senate rule requiring a super-majority for passage of legislation, if that rule were strictly enforced, might result in sufficient constitutional injury to support standing by some plaintiff. However, Mr. Page is not challenging a super-majority requirement for legislative passage, but an internal, procedural rule requiring a super-majority vote to close debate.4 Mr. Page has not suffered constitutional injury.
Assuming arguendo that Mr. Page alleged sufficient injury, the Court proceeds to analyze the remaining two elements of standing. To satisfy the causation prong of the standing analysis, a plaintiff must show that the injury "fairly can be traced to the challenged action of the defendant[s], and not injury that results from the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). The chain of causation between Rule XXII and any possible injury suffered by Mr. Page stemming from the failure of unspecified legislation to be enacted is far too remote to satisfy this second element of standing. There is no guarantee that, but for the cloture rule, the legislation favored by Mr. Page would have passed the Senate; that similar legislation would have been enacted by the House of Representatives; and that the President would have signed into law the version passed by the Senate. There are too many independent actors and events in the span between a cloture vote and the failure to pass legislation to characterize the connection as direct. Legislation of the precise type favored by Mr. Page may not even be introduced into both Houses and, if it is, may not pass both Houses or may fail to be signed by the President. Moreover, the failure to close debate on an individual cloture vote does not necessarily prevent the legislation in question, or parts of that legislation, from being enacted. The attempt to close debate may succeed on a subsequent cloture vote or a part of the bill may be incorporated into other legislation that is ultimately enacted.
With regard to the third standing prong, it is unlikely that Mr. Page's injury would be redressed by a favorable ruling. Even were this Court to declare Senate Rule XXII unconstitutional, it would be inappropriate for this Court to rewrite the Senate rules as Mr. Page suggests. See U.S. CONST. Art. I, sec. 5, cl. 2 ("Each House may determine the Rules of its Proceedings . . ."). Therefore, were Rule XXII declared unconstitutional, the Senate could return to its former practice of allowing unlimited debate unless there existed unanimous consent to close debate. Clearly, Mr. Page would not favor that result. The measures that Mr. Page suggests the Court should take -- rewriting the Senate rules and withholding the Senators' pay -- raise serious separation of powers concerns.
Because Mr. Page lacks standing to bring this action, it must be dismissed. Moreover, because he lacks standing, it is unnecessary for the Court to address the defendants' alternative bases for dismissal. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring) (constitutional questions should not be decided if the case may be disposed of on other grounds); Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1171 n. 8 (D.C. Cir. 1983). Accordingly, for the reasons stated above, it is hereby
ORDERED that the both the Senate Defendants Motion to Dismiss and defendants Rubin and Withrows' Motion to Dismiss are granted. This case stands dismissed.
IT IS SO ORDERED.
March 4, 1998
JOYCE HENS GREEN
United States District Judge